The First Section of the Provincial Court of Las Palmas de Gran Canaria has acquitted a resident of Lanzarote accused of a drug trafficking crime, after the Civil Guard dismantled a marijuana plantation, seizing 15.95 kilos of this drug on a farm in El Cuchillo (Tinajo). However, according to the ruling, the defendant had leased said greenhouse to the association Cannapharmacia Cannabis Social Club "without it having been proven" that he possessed said plantation "for its subsequent sale and distribution".
The events took place in April 2016 and, according to the sentence, the Civil Guard went to said farm, which was the defendant's home, to find and locate a tractor that had just been stolen, according to the statements that the alleged perpetrator of the theft had just made to them. Once there, the agents arrested the defendant "in situ", who gave "his consent" to search it, finding the marijuana plantation, whose seized quantity would have reached the amount of 18,151 euros in the illicit market.
However, said search was carried out "without due legal assistance" and, therefore, the Criminal Court number 3 of Arrecife annulled it in the first instance, as requested by the defendant's defense, acquitting him of the crime against public health in its drug trafficking modality, considering that "being null the entry and search", there was no "sufficient evidence against the accused".
Appeal by the Public Prosecutor's Office
The sentence was then appealed by the Public Prosecutor, who requested its revocation, opposing the nullity raised by the defense and admitted by the magistrate of the court of first instance. Specifically, the Prosecutor's Office alleged, on the one hand, that the entry and search had been carried out "on the occasion of a flagrant crime", arguing that "consent was unnecessary in their opinion" and, on the other hand, that the defendant "was not under arrest" when he authorized the search, understanding that it is therefore "valid".
In addition, the Public Prosecutor defended in its appeal that "there are numerous evidentiary elements that prove that the defendant used his home to dedicate it to the production and cultivation of narcotics with a vocation for trafficking" and stated, among other arguments, how "the defendant himself stated to the Civil Guard agents that he was the cultivator with the purpose of supplying said substance to the members of the Cannaphamacia located in the town of Playa Honda", although he later denied it in the trial incurring "in numerous contradictions".
The Prosecutor's Office also alleged that, according to what the Civil Guard agents themselves stated in the oral hearing, "the greenhouse where the marijuana plants were located was closed with a padlock", which was opened "voluntarily" by the "defendant himself", who showed them "the facilities and all the marijuana plants to the point of entering his house in search of more buds that he had there with the purpose of handing them over to the agents", although the defendant also gave "a different version" in the trial.
The Provincial Court ratifies the nullity of the search
However, the First Section of the Provincial Court has rejected the appeal filed by the Prosecutor's Office, ratifying the ruling issued in the first instance and the nullity of the entry and search carried out on the greenhouse where the plantation was found, as it considers that the defendant "was indeed under arrest" as it is deduced "clearly and with all certainty from the police report itself".
"If the agents had not arrested the defendant previously in this case, his collaboration in removing the marijuana plants could have been considered as tacit consent to said search, but since this did not happen, and the agents were aware that the search was carried out once the defendant was arrested without him being duly assisted by a lawyer when they knew that assistance was mandatory, it leads to the consideration that said consent is totally flawed and, therefore, the search is null, and therefore, all the actions derived from it in accordance with the doctrine of the poisoned tree", the court points out, which considers that the "right of defense and the inviolability of the home of the accused" were violated.
In addition, the First Section of the Provincial Court points out that "it is difficult to speak in this case of a flagrant crime that justifies the entry and search without judicial authorization or consent of the owner when it is clear from the police report itself that the police officers appear at the defendant's farm for the alleged theft of a tractor". "It cannot be conceived in any way as a case of flagrancy", the court points out, which affirms that "none of the requirements demanded for it are met".
"There is no temporal immediacy with the commission of the crime of theft. Nor is there any from a personal point of view. And the intervention is obviously not urgent", adds the court, which points out that it is "a case of subsequent and unconnected casual finding, since the entry and search finally carried out bears no relation to the flagrant crime investigated, with which the enabling circumstance, if any, ceases to have the capacity to limit the right to the inviolability of the home".
Thus, the First Section of the Provincial Court has confirmed the acquittal of the defendant, considering that "there are no other autonomous and lawful alternative evidence that allow to base the conviction of the defendant". In addition, it points out that even if this were the case, it could not convict the defendant who was acquitted, but simply annul the acquittal sentence and return the proceedings to the Court that issued the appealed resolution.
The president of the association, "whereabouts unknown"
However, the ruling highlights that the defendant denied in the trial that he was the one who cultivated the marijuana plantation and maintained that "he had simply rented the greenhouse of the farm to the cannabis association", pointing out that as proof of this he presented the lease agreement of the farm "in which it is established that the person responsible for that cultivation is the president of said association", who, according to the ruling, was also the alleged perpetrator of the theft of the tractor that led the Civil Guard to said greenhouse.
However, the sentence points out that "despite having tried" to locate the person responsible for the cannabis club "in numerous addresses", he has had to be "declared in a situation of whereabouts unknown for this Court, as he is allegedly in Miami".
